We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

In a recent decision of the Fair Work Commission (FWC), an employer successfully defended an unfair dismissal based on breaches of a drug and alcohol policy. The outcome was significant as it endorsed the conclusions of employers finding that positive drug tests were serious policy breaches warranting termination.

The Full Bench of the FWC overturned a controversial decision to reinstate a Sydney Harbour ferry master who tested positive to marijuana at work. Sydney Harbour Ferries v Toms.

In April 2014, the ferry master initially won an unfair dismissal claim before the FWC and was reinstated to his role. In the original decision, FWC Deputy President Lawrence accepted that the employee’s positive drug test constituted a breach of the employer’s policy and was a valid reason for the dismissal. Despite this, DP Lawrence still concluded that the dismissal had been harsh, unjust or unreasonable. The employer Harbour City Ferries appealed the decision and succeeded before the Full Bench.

Harbour City Ferries had a zero-tolerance drug and alcohol policy which defined “drug free” by reference to the Australian Standard for detection and quantification of drugs of abuse in urine. The employer’s Code of Conduct also required employees not to commence or continue work if they are affected by alcohol or other drugs.

The employee smoked a marijuana cigarette the day before he was called in as cover for another ferry master who was off sick. He did not refuse the shift or indicate prior to the shift that he may be in breach of the employer’s drug and alcohol policy. While on shift, the employee was operating a ferry when it collided with a pylon, resulting in an injury to a passenger.

The employee was tested for drugs following the collision and returned a result in excess of the Australian Standard. He did not immediately disclose his drug consumption, but did so as part of the employer’s investigation into the matter, indicating he had smoked marijuana for pain relief in relation to an injury. The employer’s enquiry did not find a connection between the drug consumption and the collision.

After completing all relevant investigations, Harbour City Ferries dismissed the employee for breaching its Code of Conduct which was regarded as a serious breach of a significant policy.

The Full Bench also considered the mitigating factors that Deputy President Lawrence had originally taken into account in finding the employee’s dismissal was unfair, including:

the employee’s 17 years of service;

no prior positive drug test results;

no actual impairment;

no connection between the incident and the drug use;

the employee’s cooperation with the investigation;

the employee’s inability to find work following the dismissal;

the employee’s eventual admission of fault; and

other appropriate sanctions.

The Full Bench determined that these mitigating factors did not sufficiently address the core issue which was the employee’s deliberate disobedience of a significant policy, amounting to serious misconduct.

The Full Bench accepted that Harbour City Ferries had the right to require its employees to comply with its drug and alcohol policy “without discussion or variation”. In making this observation, the Full Bench noted the employer’s obvious concerns with public safety. (The employer) “does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor.” Harbour City Ferries’ appeal was upheld and the FWC dismissed the employee’s unfair dismissal application.

This decision demonstrates that employers should be aware of the need to have carefully considered drug and alcohol policies with appropriate implementation and enforcement in every workplace. Finally, decision-making and reasons for dismissal must be consistent. If an employer is relying on a policy to take action against an employee, it must ensure appropriate induction, compliance with the policy and any prescribed investigation and disciplinary process.

Related topic hubs

Compare jurisdictions:Employment: USA

"I am a regular reader of Lexology, as are a few of my colleagues. I find the email newsfeed useful and of good quality, and in some cases directly on point with issues of concern to the company. It is important to stay current with legal developments, and the articles are a great aid toward this goal. The ability to access the articles without cost is critical and I hope Lexology continues with the good work."